Client Alerts

I would categorize the Cambridge Analytica incident/breach in a similar fashion to the Edward Snowden revelations in that the Snowden revelations that awakened the world—and specifically the EU—to the extent of nation-state monitoring (in the Snowden case, it was the US’s monitoring activities, but don’t think for a second that every other country that was outraged at our monitoring wasn’t doing the very same thing to us and others) that ultimately resulted in the collapse of the US-EU Safe Harbor self-certification program, the rise of the temporary fix with the Privacy Shield and now the soon-to-be-implemented General Data Protection Regulation.  All of this furor over the loss of privacy and the “theft” of personal data must be placed into context.

On Monday, the Environmental Protection Agency (EPA) rolled back the Obama-era auto emissions standards for 2022 to 2025 model-year cars and light-duty trucks. At first glance, this appears to be a clear win for automakers, who have been complaining for years that the steep targets for fuel economy and emissions are not only costly, but also stifling to the American automotive market. While the political motivations and topics like the impact of these rollbacks on carbon dioxide (CO2) emissions will likely be debated over the coming weeks around water coolers, coffee stations in the office, and on countless media outlets, one of the most pressing questions that need-be answered is, what will the impact of these rollbacks be on the automotive supply base?

The U.S. Trade Representative(USTR) announced on April 3, that it has  determined that the acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation covered are” unreasonable or discriminatory and burden or restrict U.S. commerce” and is proposing retaliatory tariffs on some 1300 items.  USTR is seeking public comment on the proposed tariffs and will hold a public hearing regarding a proposed determination on appropriate action.  USTR proposes an additional duty of 25 percent tariff on a list of products from China. The list of products, defined by 8-digit subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), is set out below.

There is money and business management support available for the commercialization of good ideas in the health industry sector. In the second annual The Autonomous Patient: Entrepreneurs Driving Healthcare II© event held at Automation Alley, industry thought leaders, entrepreneurs with technologies, devices and pharmaceuticals, business incubators, and representatives from private and public financing sources shared their battle-honed perspectives and blunt advice to current and would-be entrepreneurs involved or interested in the burgeoning healthcare space.  Rounding out their insight and advice was some practical workshop information on the regulatory environment in which ideas must be turned into action.  An engaged audience took away some valuable advice from the keynote remarks, four panel sessions, questions and the networking discussions that took place around them.

Latest Developments

Hours before stiff tariffs on steel and aluminum (25% and 10% respectively) that were first announced by President Trump two weeks ago became effective, the White House on March 22, 2018 issued a new set of Proclamations temporarily exempting imports from “countries with important security relationships” with the U.S. – i.e., Argentina, Australia, Brazil, all European Union countries, and South Korea --  in order to continue discussions “on satisfactory alternative means to address the threatened impairment to the national security by imports of steel articles from those countries.” Major exporters not included were Japan, China, India, and Turkey.

Publicly Owned Treatment Works (“POTWs”) with Industrial Pretreatment Programs are evaluating facilities that discharge into the POTW to determine whether companies are discharging perfluorooctanoic acid (“PFOA”) or perfluorooctanesulfonic acid (“PFOS”) (collectively, “PFAS”) into the POTW. As part of the State of Michigan’s initiative to track down and eliminate potential sources of PFAS in drinking water, The Department of Environmental Quality (“DEQ”) sent notices to Michigan POTWs reminding them of the state’s previously established and applicable Water Quality Standards (“WQS”) for PFAS , warning that a POTW that passes PFAS through its treatment plant in concentrations exceeding these WQS is in violation of the POTW’s NPDES permit and state law.

The Commerce Department (DOC) published the actual procedure for “individuals and organizations using steel or aluminum articles in business activities in the United States” to seek product exemptions from the Section 232 tariffs on steel and aluminum imports announced by President Trump on March 8 2018. These product exemptions are separate from the country exemptions that the President has invited individual nations (other than Canada and Mexico) to attempt to negotiate.

Exactly one week after his surprise announcement before a group of steel and aluminum industry executives to impose tariffs on “all” steel and aluminum imports in the interest of national security, President Trump followed up on March 8, 2018, with formal Proclamations to implement his decision.  The Proclamations order modification of the Harmonized Tax Schedule to implement an additional ad valorem duty of 25% on imported steel articles, and 10% on aluminum articles,  “with respect to goods entered, or withdrawn from warehouse for consumption” effective March 23, 2018. 

On March 7th, in a highly anticipated opinion, the Court of Appeals for the Sixth Circuit held that discrimination on the basis of transgender status and gender transitioning violates Title VII of the federal Civil Rights Act of 1964, as amended (Title VII). The court overturned a lower court decision that had found a narrow “religious freedom” exception allowing termination of a transgender employee. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, 2018 WL 1177669 (6th Cir. March 7, 2018).

After that photo company sent a demand letter for $5,000, you agreed to never again grab images off of Google.  Instead, you turned to Twitter or YouTube or Facebook and grabbed the embed code and put it on your website.  What could go wrong, after all, they make the embedding code so easy to access… 

Despite the fact that copyright law finds its origins in the U.S. Constitution, it is far from an established doctrine.  Never has this been more obvious than when Tom Brady, Twitter and Breitbart News collided in a case that will likely change the way companies across the country address linking social media in websites.

President Trump announced on March 1 his plan to levy tariffs of 25% and 10% respectively on steel and aluminum imports. His surprise announcement came during a “listening session” at the White House with U.S steel and aluminum company CEOs and in advance of a briefing scheduled with Chinese officials on the impending actions. He described the measures as providing the opportunity for the U.S. to “re-grow” the steel and aluminum industries, which “have been decimated by decades of unfair trade and bad policy with countries from around the world.” Trump only stated the amount of the tariffs; that they would be in effect “for a long period of time”; and that he would sign off on them next week. He did not explain whether they would apply to all exporting countries and/or to all categories of products. The White House provided no other details.

The Tax Cuts and Jobs Act (the new Tax Act) may make sexual harassment settlements more expensive for employers. Prior to tax reform, the Tax Code had permitted companies to take a business deduction for the costs of obtaining sexual harassment settlement agreements. The new act prohibits that deduction if sexual harassment or sexual abuse settlements include non-disclosure provisions.

In one of the most watched Trade Secret Misappropriation cases of the century—which has been billed as an “epic” lawsuit, one of the “juiciest” trade secret cases ever, and one of the “highest profile court battles in Silicon Valley history”—Waymo and Uber have finally reached a settlement in the case that has raged on between them for the past year. As part of the settlement, Waymo (a subsidiary of Google’s parent company) will receive .34 percent of Uber’s equity. If that does not sound like much, considering that Uber is valued at $72 billion, it is. This settlement translates to approximately $244 million. One publication reports that were this amount won in a jury verdict, it would have been one of the highest trade secret jury verdicts in the United States in the past decade.

You may not have been paying attention to the upcoming GDPR (General Data Protection Regulation) deadline on May 25^th, thinking that it does not apply to your company, but it may.

In a previous Client Alert, we provided information on the growing trends in telemedicine.  In 2017, that trend continued, as 34 states and the District of Columbia passed 63 pieces of telemedicine legislation.  Nine states passed telehealth legislation mostly easing restitution.  Nebraska, Washington, Tennessee, and Maine passed legislation to join the Interstate Medical Licensure Compact, and 22 states now support this effort to streamline physicians licensing in multiple states. Two other states have delayed implementation and four more--including Michigan—still have legislation pending.

The Department of Labor (“DOL”) has announced that the revised claim and appeal procedure regulations under the Employment Retirement Income Security Act of 1974 (“ERISA”) for employee benefit plans providing disability benefits will soon take effect. The enhanced rules primarily adopt procedural protections and safeguards for disability benefit claims that are currently applicable to claims for group health benefits pursuant to the Patient Protection and Affordable Care Act. As a result, plan administrators of employee benefit plans subject to ERISA will need to quickly act to ensure compliance with the enhanced rules.

How the Sessions Memo Affects the Cannabis Industry in Michigan and Beyond

As the cannabis industry continues to grow across the nation (marijuana use is legal in some fashion in approximately 29 states already), the general public and those with vested business interests in the industry itself are anxious to see whether that growth will either continue or pause in the Trump Era. In Michigan, we are tracking the possibilities of recreational marijuana legalization as early as 2019, following an anticipated vote in the November 2018 general election. That anxiousness is even more pronounced given a recent decision from United States Attorney General Jeff Sessions, who released a memo on January 4, 2018 (the “Sessions Memo”) rescinding federal guidance that had reassured states that they would not be punished for legalizing marijuana. Politics aside, that rescission has left the public and the industry with more questions than answers. This article attempts to provide a critical update on the status of this developing topic and explores the potential impact on the Cannabis industry in Michigan and beyond.

Effective January 1, 2018, the Bipartisan Budget Act of 2015 (the “Budget Act”) implements new rules regarding audits of partnerships. These rules also apply to limited liability companies taxed as partnerships. For partnership tax years beginning in 2018, the Budget Act now imposes an entity level tax collected on the partnership itself to the extent the partnership is audited and the Internal Revenue Service makes an adjustment and determines that there is a tax deficiency in any audit. Prior to application of the Budget Act, audits were normally assessed and paid at the partner level by the partners rather than at the partnership level by the partnership.

In a Letter to State Surveyors, the Centers for Medicare & Medicaid Services (“CMS”) has clarified its position on texting patient information, and more notably Orders, among members of a patient’s care team. In a nutshell: Don’t Do It!

The Affordable Care Act (ACA) contraceptive mandate, contained in 2012 agency guidelines fleshing out the ACA “essential health benefit” pertaining to women’s health and preventive services, required most group health plans to provide contraceptive coverage with no cost-sharing, unless the plan sponsor fell within a religious exemption. On October 6, 2017, the Trump Administration issued immediately effective “Interim Final Rules” (the “2017 IFRs”) that “rolled back” that mandate.

Now, however, in two of several lawsuits challenging the new rules, federal courts in California and Pennsylvania have entered nationwide injunctions barring the Administration from enforcing the 2017 IFRs.